Licence Appeal Tribunal
An Appeal from a Notice of Proposal by the Registrar, Real Estate and Business Brokers Act, 2002, S.O. 2002, c. 30, Sch. C.- to Refuse/Renew Registration
Between
Morrissa Amsel
Appellant
and
Registrar, Real Estate and Business Brokers Act, 2002
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: John Kromkamp, Member
APPEARANCES:
For the Applicant: Lou Ciotoli, Counsel
For the Respondent: Shane Smith, Counsel
Heard in Toronto by teleconference: February 12, 2019
REASONS FOR DECISION AND ORDER
1This is a motion brought by counsel for the applicant seeking to adjourn the final argument of this appeal currently scheduled for a one day hearing on February 26, 2019. The hearing of this matter had been adjourned from time to time but the evidence was completed on December 14, 2018. Oral argument was scheduled for February 15, 2019 but later rescheduled to February 26. Counsel for the applicant now applies for a further adjournment but counsel for the registrar now opposes the request.
2This proceeding has followed a somewhat interesting path, ending with Dr Kakar testifying about his medical treatment of the applicant, relying on and referring to his clinical notes which had been made an exhibit earlier in the proceedings. Counsel for the applicant challenged the accuracy of those notes. As mentioned this cross-examination apparently concluded the hearing of evidence in this case. However, the applicant, pursuant to s 55 of the Personal Health Information Protection Act, 2004, has sought to have Dr Kakar correct his records. That process is now underway, in line with the timelines provided for in that Act. Counsel is unaware at this point what, if any, changes Dr Kakar may be prepared to make. The applicant seeks an adjournment to allow this process to play out in the hope that evidence might be generated helpful to his client. Counsel for the Registrar opposes a further adjournment on the basis that Dr Kakar has already testified and been cross-examined. Further the proposed evidence was or could have been made available for use at the time of the hearing. His position was that the proposed evidence is inadmissible, and hence the tribunal should proceed as scheduled.
3Without knowing what the evidence is, it would be premature to comment on or rule on its admissibility and weight at this stage. In my opinion, that can only be resolved once a full record is before the tribunal. The applicant is not engaged in any real estate dealings. Consequently there is no prejudice to the respondent or risk the public if the matter is adjourned for a few weeks to permit counsel to explore this potential evidence. On balancing the interests of the applicant and respondent the tribunal finds that the motion for an adjournment should be granted.
4What is being proposed by the applicant is similar to a motion to introduce fresh evidence. In my view, some if not all of the considerations on such motions are applicable to this proposed motion. To that end, the applicant will file a record containing the proposed evidence and such affidavits or other evidence required to establish any preconditions to its admissibility. Counsel for the respondent will have an opportunity to cross-examine any deponents on their affidavits and adduce other evidence bearing on the question of whether the tribunal should accept the evidence at this late stage. Hopefully any examinations can take place before a special examiner in advance of the resumption of the hearing. In keeping with the procedure followed on motions to introduce fresh evidence, argument on its admissibility will take place at the time of the submissions on the case as a whole.
5For the time being the schedule set for exchange of submissions will stand, but I will be amenable to adjustments if necessary arising from this development. Similarly, if necessary, I may be spoken to if my assistance is required to resolve any issues that may arise. Of course, Mr Ciotoli will advise counsel for the registrar and the tribunal if he decides not to seek to tender further evidence.
ORDER
6The request for an adjournment is granted. The hearing of the appeal is now scheduled for one day commencing April 24, 2019 commencing at 9:30 a.m.
LICENCE APPEAL TRIBUNAL
John Kromkamp, Member
Released: February 19, 2019